Ed. Note.: This 101, by Kaustub Bhati, is a part of the NALSAR Tech Law Forum Editorial Test 2016.
Have you ever used a torrent to download something not available freely? You must have. Ever wondered how it works and why there is so much fuss about it being illegal and people using it might face legal sanctions?
A torrent is typically a file sharing method in which large media files are shared between private computers by gathering different pieces of the file you want and downloading these pieces simultaneously from people who already have these files. This process increases the download speed manifold. An example would be if 5,000 people are downloading the same file then it doesn’t put much pressure on the main server itself but what happens is that every individual use contributes upload speed which in turn ensures that the file transfer is fast. The download, hence, doesn’t really take place from the main server but from the 4999 other users currently downloading. This is typically known as P2P or Peer-to-Peer sharing method.[1]
Now since the invention of torrents in 2001 by Bram Cohen, it is being used to share a massive no. of files everyday some of which are copyrighted materials such as video games, movies and songs which should technically be paid for but are being distributed freely. This loss of revenue for the copyright-holding companies and the subsequent law-suits brings us to the forefront of our discussion: The Legal issues.
The torrent is not wholly illegal as the general misconception is. It can be used to share files across different people legally but the line is drawn when it comes to copyrighted content because then it amounts to Intellectual property theft. Almost 97 – 98% hosting companies (the companies which provide the link rather than host the content themselves) do not allow hosting torrents, and most of them are simply afraid of the word torrent. In India too, the authorities are catching up, Sec 66 of IT Act provides for 2 years of imprisonment and fines for people who download pirated media from the internet.
The Cyber Cell Department catches this illegal downloading by paying some IP Troll companies which lets them join the hosts of people downloading torrents allowing them to see the IP addresses and hence come knocking on their door steps. This leads to another legal issue as the IP address only tells WHERE the file is being downloaded and not WHO is downloading and also what would be done if the downloader was a minor? These are some problems faced by the prosecution in the court of law.
One of the major problems that can be seen globally is the difference in copyright laws in different countries giving rise to file-sharing sites such as The Pirate Bay to swim through this crack by saying that no laws of the host country i.e. where the servers lie, are being violated and hence everything is legal. Internet sites like Pirate Bay even posts legal notices sent to them by companies like Sony, DreamWorks and Electronic Arts on their site accompanied by mocking retorts.[2]
The prominent arguments presented in favour of the sites like these are that the sites themselves are not illegally distributing copyrighted materials but are functioning just like any other search engine like google or yahoo providing relevant search results to a query after which the users themselves are responsible for the acquisition of the materials in question and they themselves should be held liable and not the intermediaries. While Sweden in its judgement against co-founders of Pirate Bay refuted this, countries like Netherlands, Ukraine, India and the privacy-conscious Switzerland have become new piracy havens due to the exact same loopholes in the law deeming the intermediaries as not guilty of what their customers do.
While countries like Japan have severely strict laws entailing a 10-year imprisonment for uploading and a 2-year imprisonment for downloading illegal content[3], Germany is also not far behind, imposing a fine of €1000 fines or more if even a single instance of a copyrighted material is downloaded through BitTorrent.
These were some of the legal ramifications regarding the use of torrents, in an era when everyone wants everything to be freely available with just a click, Peer-to-peer file sharing has become a platform for political activities against intellectual property laws and has sparked movements such as the anti-copyright movement advocating complete or partial remission of current legislations. In the end, the ball is thrown towards the general masses to catch and in turn be implicated in illegal activity or let it fall and support the rights of the creators of the content we so want to see.
[1] Carmen Carmack,” How BitTorrent Works”, http://computer.howstuffworks.com/bittorrent1.html
[2] Dennis H, A Pirates’s Life in Sweden, https://yalelawtech.org/2011/02/23/a-pirates-life-in-sweden/
[3]Japan introduces piracy penalties for illegal downloads, http://www.bbc.co.uk/news/technology-19767970